Appeals Court Orders Release of Targeted Killing Memo

3-0 Ruling Reverses District Court’s Dismissal of ACLU FOIA Lawsuit

NEW YORK – For the first time, a federal appeals court has ordered the government to release a crucial legal memo relating to U.S. targeted killing operations, reversing a lower court decision that upheld the government’s secrecy claims despite characterizing them as the stuff of “Alice in Wonderland.”

The American Civil Liberties Union’s Freedom of Information Act lawsuit demands that the CIA and the Departments of Justice and Defense disclose records about the deaths of three U.S. citizens killed in Yemen in 2011: Anwar al-Awlaki, his 16-year-old son Abdulrahman, and Samir Khan. In addition to ordering the release of a legal memo from the Justice Department’s Office of Legal Counsel to the Defense Department, today’s 3-0 ruling by the Second Circuit Court of Appeals also ordered the government to describe other documents relating to the killings about which it has previously refused to release any information. The ruling permits the ACLU to challenge the government’s withholding of those documents in the lower court.

“This is a resounding rejection of the government’s effort to use secrecy and selective disclosure to manipulate public opinion about the targeted killing program,” said ACLU Deputy Legal Director Jameel Jaffer, who argued the case before the three-judge panel in October.

“The government can’t legitimately claim that everything about the targeted killing program is a classified secret while senior officials selectively disclose information meant to paint the program in the most favorable light. The public has a right to know why the administration believes it can carry out targeted killings of American citizens who are located far away from any conventional battlefield.”

The ACLU’s FOIA request seeks documents related to the legal and factual bases for the government’s killing of the three Americans, including memos written by the Justice Department’s Office of Legal Counsel concluding that the killing of American citizens would be constitutional in certain situations. The New York Times submitted a similar but narrower FOIA request, and the two resulting lawsuits were combined.

Also today, Justice Stephen Breyer issued a statement in connection with the Supreme Court’s decision to not hear a case relating to the detention of a prisoner held at Guantánamo. Discussing the Authorization for the Use of Military Force, which is used by the government to justify drone killings and other operations, Justice Breyer emphasized that the Supreme Court “has not directly addressed whether the AUMF authorizes, and the Constitution permits, detention on the basis that an individual was part of al Qaeda, or part of the Taliban, but was not ‘engaged in an armed conflict against the United States’ in Afghanistan prior to his capture.”

Connecting today’s targeted killing decision with Justice Breyer’s new statement, ACLU National Security Project Director Hina Shamsi said, “Today’s decision requiring the government to release its legal justification for the targeted killing program takes on special significance in light of Justice Breyer’s reminder that the Supreme Court has not sanctioned the government’s extreme claim that it is engaged in a possibly forever war without geographic limits. The courts have a crucial role to play in reviewing and limiting the government’s use of lethal force far from any battlefield.”

Today’s ruling is the second by an appellate court to reject the government’s claims of secrecy surrounding the targeted killing program. In a separate pending FOIA lawsuit filed by the ACLU seeking documents about drone operations worldwide involving both U.S. citizens and non-citizens, the D.C. Circuit Court of Appeals ruled in March 2013 that the CIA can no longer deny its intelligence interest in maintaining the targeted killing program.